EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Christopher Rennicks, -claimant UD650/2013
RP463/2013
WT113/2013
against
Jim Mulchrone Plant Hire Limited, -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates
Members: Mr. D. Winston
Mr. T. Brady
heard this claim at Dublin on 28th May and 28th July 2014
Representation
Claimant: Ms G. Carroll BL instructed by Ms Anna Lynch of Hanley & Lynch, Solicitors,
24 Clonskeagh Road, Dublin 6
Respondent: Mr. Gary Mulchrone, Gilvarry & Associates, Solicitors,
Unit 9, N5 Business Park, Moneen Road, Castlebar, Co Mayo
The determination of the Tribunal is as follows:
Background
The respondent is a plant hire company that supplies machines and operators largely to Meath County Council and to a lesser extent to Navan Town Council. The director of the company has done this work for approximately 30 years.
The fact of dismissal was in dispute. The respondent strongly contested the suggestion that a redundancy situation existed in relation to the claimant’s position. He gave evidence that the claimant, was rather, placed on temporary lay-off.
The claimant commenced working for the respondent in 1997 as a labourer. In 2001 he was driving a dump truck. Following a serious road traffic accident in 2003 he drove a digger. By 2013 the claimant was the longest serving of 9 employees with the respondent. In or around February 2013 the claimant took time off work to pursue his interest in river rescue.
Difficulties arose concerning the respondent’s contracts with Meath County Council and as a result all work for the Council ceased while the matters were rectified. When the Council laid off the machines the respondent had no choice but to put the operators on lay-off. This lay-off was always intended to be a temporary measure. 8 employees were laid-off, including the director’s son and the claimant.
The single employee not laid off operated a machine that was contracted to Navan Town Council and this contract continued. The claimant was aggrieved that this employee, who had considerable less service than him, remained working. The claimant believed that this employee was not laid-off because his father held an influential position where his good will was of benefit to the respondent. This opinion was not accepted by the respondent.
As the contractual problems were resolved the machines returned to work and the operators were recalled from lay-off over a period of time. The claimant was recalled to work. There was some confusion about when precisely and for how long the claimant was back working. It is accepted that he did return and worked on two tasks with the director’s son. The director’s son told the Tribunal that the claimant’s return to work was intended to be permanent because there was a full time post available to the claimant as a digger driver. The claimant denied that this was clearly communicated to him. The director’s son advised the claimant to sign off social welfare when he returned to work to avoid a situation where the claimant was paid while claiming benefits.
The claimant completed the tasks he was initially assigned on his return to work but alleged that no further work was assigned to him. He later served an RP9 on the respondent when further work did not materialise. The director and his son were adamant that there was work for the claimant but that the claimant simply failed to return to work.
The director told the Tribunal that the claimant is owed 3 days’ pay and it will be paid subject to certain assurances. The claimant was a good worker and the director is prepared to offer him a position again.
Determination
On 8 March 2013 all employees were notified by letter that there would be a temporary lay-off period. Accordingly all employees were laid off with the exception of one employee who was employed on a Contract with Navan Town Council which was not affected by the lay-off in Meath County Council work.
The respondent’s evidence was that all employees were issued with a letter requesting their return to full time work. The respondent’s letter to the claimant was dated 9 April 2013 and he returned to work on the 12 and 15 April 2013. However there was a conflict as to whether the claimant was asked to continue to work thereafter. Having considered the evidence adduced by both parties, the Tribunal is satisfied that the claimant was aware that he had been placed on temporary lay-off only and was asked to return to work once the difficulties with the Meath County Council contracts were resolved.
The Tribunal is satisfied on the evidence adduced by both parties that in the circumstances the claimant’s employment did not terminate by virtue of redundancy and neither was he unfairly dismissed. The claims under the Redundancy Payments Acts 1967 to 2007 and under the Unfair Dismissals Acts 1977 to 2007 both fail.
The claim under the Organisation of Working Time Act 1997 seemed to refer to the 3 days’ wages owed to the claimant and accordingly the Tribunal has no jurisdiction to hear it.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(CHAIRMAN)